DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No. 117/2021

QUORUM:

Order By: Ms. Rashmi Bansal (Member)

JUDGMENT

By the present order, the commission is disposing off the complaint of the complainant with respect to the deficiency in service on the part of OP in not giving the possession of his flat as per Builder Buyer Agreement despite receiving consideration for the same.

1. It is the case of the complainant that he has booked a flat in Glory, Tower in the project of OP’s Sikka Karnam Greens as a joint allottee with his wife by paying booking amount on 07.07.2014, for a total consideration of Rs.53,36,000/- and has paid 97% of the cost i.e. Rs.52,36,562/- to the OP. Complainant submits that he has taken a loan for a sum of Rs.44,00,000/- from the bank on the EMI of around Rs.42,000/- per month and paid the above amount as demanded by OP but despite that the possession was not given till date which was promised to be given in three years by 08.07.2017 as per agreement between them and still, there is no sign of possession even now. Complainant submits that due to this he is constrained to live in a rented accommodation by paying a monthly rent of Rs.23,000/- and suffered irreparable loss and injury and living under financial constraints as he is required to pay interest on the loan amount without getting possession of the allotted unit whereas the OP is earning interest on the amount paid by the complainant. Complainant submits that if the possession would have been given by the OP in time, he would not have to pay the rent and could have easily paid his EMI to the bank and therefore he submits that he is entitled for the re-compensation of the loss suffered by him in the form of rent paid along with harassment, injury, both mental and physical.
2. During the course of the proceedings, it was informed by the complainant that RERA Gautam Budh Nagar, vide its order dated 01.10.2021 has directed the OP to handover the possession of the flat to the complainant along with all facilities by 31.12.2021 with OC/CC and make the registry of the unit. OP was also directed to pay the interest for the delayed period and to adjust the same in the payment made by the complainant and if there is any excess amount paid by the complainant, then the same has to be paid back to the complainant.
3. At later stage, after the passing of order from RERA Gautam Budh Nagar the complainant also prayed for payment of rent amount paid by him in actual from 08.07.2017, i.e. from the date of expiry of 3 years for handing over possession of his flat to the date. 
4. Upon notice, OP did not appear and was proceeded ex parte vide order dated 19.04.2023.
5. The complainant has filed Ex-parte evidence and in support of his case has filed copy of Allotment Letter, Builder Buyer Agreement, Receipts issued by the OP against payment, Tripartite Housing Loan Agreement, copy of statement of accounts issued by OP, loan documents from ICICI bank, account statement paid towards rent by the complainant.
6. The Commission has heard the arguments put forward by the counsel for the complainant and perused documents placed on record by the complainant. Since Hon’ble RERA has already addressed the grievances of the complainant with respect to the possession of the flat, therefore, the only grievance of the complainant to be decided by this commission is with respect to the compensation for deficiency in service by OP, the litigation cost and payment of Rent, if any.
7. Before deciding the matter on merit, the Commission has to consider the question of pecuniary jurisdiction of the case.  Admittedly, the complainant has paid an amount of Rs.52,36,562/-.  By the notification dated 30.12.2021 of M/o Consumer Affairs Food Supplies and Distribution, the pecuniary jurisdiction of the District Commission was limited to Rs.50,00,000/-.  The said notification also stated that these rules shall come into force on the date of their publication in the official gazette, which is 30.12.2021. In HP State Electricity Regulatory Commission V/s HP State Electricity Regulatory Board, (2014) 5 SCC, Hon’ble Supreme Court has held that:

“It is settled proposition of law that enactments dealing with substantial rights are primarily prospective unless they are expressly or by necessary intention or implication given retrospectively.” 

Therefore, in view of absence of any express provision for retrospective operation, the Commission has jurisdiction to decide the present complaint which is filed on 26.02.2021 i.e. before the promulgation of above stated notification. 

8. Since OP failed to appear despite notice, therefore, all the contentions of the complainant remained un-controverted and deemed to be admitted by the OP.
9. Hon’ble Supreme Court in Lucknow Development Authority versus MK Gupta, (1994) 1 SCC 243 has held that when a person hires the services of a builder or a contractor for the construction of a house or a flat, then the same is for consideration, it is a service as defined by section 2(o) Consumers Protection Act, 1986. The inordinate delay in handing over the possession of the flat clearly amounts to deficiency in service.
10. Also in Fortune infrastructure and another versus Trevor D’Lima and others,(2018) 5 SCC 442, Hon’ble Supreme Court, held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him along with the compensation.
11. The documents on record establish that the complainant has availed the services of the OP for construction of flat for a consideration and to that extent, the complainant is a consumer and OP is a service provider. When OP failed to deliver the said unit within the stipulated time as per the builder buyer agreement after receiving the consideration, then as per the settled principle of law, there is deficiency in service on the part of OP and OP is liable for its deficient services.
12. So far as the question of payment of the rent paid by the complainant @ Rs.23000/- per month is concerned, the same cannot be paid considering the fact that complainant has chosen the said accommodation as per his own convenience and the amount paid towards rent cannot be rationalized in the absence of any substantial evidence to establish that this is the most suitable rent accommodation for the complainant viz- a viz rent paid by him.  Moreover, the payment of rent is not part of the agreement and cannot be granted by the Commission in absence of detailed evidence which is not feasible in summary trial before Consumer Commission under CPA, 2019. 
13. Considering the facts and circumstances of the case and the judgments of the Hon’ble Supreme Court, this commission is of the considered view that since OP failed, to handover the possession of the flat within a stipulated time to the complainant after having  received almost entire consideration therefore, has committed deficiency in services, and is liable to pay an amount of Rs.1,50,000/- towards compensation for causing hardship, mental agony and harassment to the complainant along with Rs.50,000/- towards Litigation cost without any interest.
14. The above stated order be complied with within 30 days from the date of the order by the OP, failing which the entire amount shall carry an interest at the rate 9% per annum till actual date of realization by the complainant.
15. The copy of the order be given to the parties as per CPA rules and file be confined to record room.
16. Pronounced on 30.11.2023.